Big money set to flood into judicial elections

The Citizens United ruling clears the way for business to buy favorable judges with campaign money

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As anyone who’s followed judicial elections for the past 10 years could have predicted, the Citizens United decision, striking down limits on corporate campaign spending, is likely to unleash a virtual run on judicial elections in some states. Judicial elections — especially for state Supreme Courts — have become been ugly, bitter, partisan battles in which millions of dollars are spent, largely to unseat incumbents in many states. The result is a judiciary that lacks the appearance and in some instances the reality of impartiality required by the Constitution. The Supreme Court has played a huge role in intensifying this problem — beginning with the Court’s ill-considered 5-4 decision Republican Party of Minnesota v. White in 2001. In that case, the Court struck down state rules that forbade candidates from judicial office from announcing their views about contested legal issues that might come before the court. Writing for the majority, Justice Scalia conveniently saw only the First Amendment dimensions of the case and none of the 14th. Yes, judicial candidates have free speech rights. But those rights should have been balanced by the countervailing due process rights of litigants to appear before an impartial tribunal. Instead Justice Scalia, and Justice O’Connor writing in her concurrence, took the position that if states are unwise enough to elect their judges, they will simply have to take their medicine and drop rules that attempt to mediate between the free speech rights of candidates and the public right to a bench that looks and is impartial. O’Connor in particular seemed to think that the Court’s decision in White might encourage states to abandon judicial elections in favor of merit selection.

But the decision by states to elect their judges was a deliberate, conscious choice. In the mid 1800s the spread of Jacksonian Democracy convinced populists that state court judges were too removed from the public, and too often appointed from the wealthy classes. They sought a judiciary that would be accountable to the public. That same populist streak has kept judicial elections alive (in at least some form) in 38 states.

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There is a real constitutional crisis in the judiciary of some states (and no, Justice Roberts, it’s not the judicial pay scale). More and more, state courts are losing the confidence of the public. The single largest contributor to judicial elections is the Chamber of Commerce and other pro-business groups. Business advocates argue that this is to counter the influence trial judges had in the 1980s, when they were the largest contributors to judicial campaigns. Whatever the history, the reality is that there are strong, well-financed forces favorable to business and to conservative political principles that exert powerful influence over state judicial elections. One would think that the Court would be sensitive this reality after deciding Caperton v. Massey last term. That’s the case in which the Court ruled that it was a violation of due process for a state supreme court judge in West Virginia to hear a case in which the CEO of the coal company defendant had contributed $3 million to ensure the judge’s election. Of course it bears remembering that Caperton was only a 5-4 decision, with the four most conservative justices who comprised most of the majority in Citizens United, in dissent in Caperton.